vs. ) Case No. 99-3083
Respondent. )
Pursuant to notice, a formal hearing was held in this case by video teleconferencing on October 1, 1999, at sites located in West Palm Beach and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Lynne T. Winston, Esquire
The issue for determination is whether Petitioner’s request for exemption from employment disqualification should be granted.
By notice dated April 29, 1999, James L. Wilson was notified by the Department of Juvenile Justice (Department) that he was ineligible for continued employment in a position of special trust or responsibility based upon his criminal history. Mr. Wilson requested an exemption from employment disqualification which was subsequently denied by the Department. Mr. Wilson requested a formal hearing regarding the Department’s denial. On July 20, 1999, this matter was referred to the Division of Administrative Hearings.
At hearing, Mr. Wilson testified in his own behalf, but presented no exhibits. The Department presented the testimony of one witness and entered twelve exhibits (Respondent's Exhibits numbered 1-12) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on October 15, 1999. Only the Department filed a post-hearing submission, which has been considered in the preparation of this Recommended Order.
On April 30, 1996, James L. Wilson was arguing with his wife. Mr. Wilson’s stepson entered into the argument. The
stepson was 15 years old. Mr. Wilson, using his open hands, pushed his stepson in the chest, causing his stepson to fall over a chair and onto the floor. This incident occurred in Richmond County, Georgia. As a result of Mr. Wilson’s action against his stepson, Mr. Wilson was arrested and charged with a misdemeanor offense of simple battery.
On May 1, 1996, Mr. Wilson pled guilty to the simple battery charge before the court in Richmond County, Georgia, and was sentenced to 12 months' probation and ordered to pay a fine of $150. As conditions for his probation, Mr. Wilson was ordered to have no violent contact with his stepson and to pay
$20 per month for probation supervision fees.
Subsequently, Mr. Wilson’s relationship with his stepson greatly improved. Mr. Wilson and his stepson get along well with one another.
In July 1997, Mr. Wilson began employment with Corrections Corporation of America (CCA) in the State of Florida to assist CCA in the establishment of a program for juveniles in Florida. He was transferred by CCA from the State of South Carolina where he worked with juveniles for CCA.
CCA is a contract provider with the State of Florida, Department of Juvenile Justice (Department).
Working in Florida, Mr. Wilson was a shift commander at CCA’s Okeechobee Youth Offender Camp in Okeechobee, Florida. As
shift commander, he supervised six staff members, supervisors of two main shifts, and 50 juvenile offenders. Mr. Wilson worked directly with juveniles.
Subsequently, Mr. Wilson became the assistant maintenance/training officer, training staff at CCA’s Okeechobee Redirect Center for Juvenile Offenders. Mr. Wilson worked directly with juveniles.
Mr. Wilson was in a caretaker position with CCA at both locations.
Being in the positions with CEA in Florida, Mr. Wilson was required to make application for a caretaker position with CCA. In conjunction with the application, the Department required Mr. Wilson to submit to a background screening conducted by the Department’s Background Screening Unit, Bureau of Investigations (Screening Unit). Only a Florida criminal history check was conducted by the Screening Unit, which revealed no criminal history for Mr. Wilson.
As part of the background screening process, Mr.
Wilson was required to sign and submit two notarized affidavits (Affidavit of Good Moral Character), which were dated July 7, 1997, and December 31, 1997, respectively. On both affidavits, Mr. Wilson indicated that he had no disqualifying offenses that would deem him ineligible to work in direct contact with juveniles. Listed on each affidavit, as one of the
disqualifying offenses, was "battery, if the victim of the offense was a minor," which is the offense for which Mr. Wilson was convicted in May 1996 in Richmond County, Georgia. Neither affidavit stated as to whether the offense was a misdemeanor or felony.
Before signing each affidavit, Mr. Wilson communicated with his supervisor at CCA. He explained to his supervisor about the misdemeanor and queried his supervisor as to whether he should indicate that he had a disqualifying offense. Mr. Wilson’s supervisor advised him that the focus of the affidavits was on felonies. Even though neither affidavit stated that the offenses were misdemeanors or felonies, Mr. Wilson indicated that he had no disqualifying offense.
In completing the affidavits, Mr. Wilson had no intention to deceive. However, the responsibility was upon Mr. Wilson to complete the affidavits and to complete them accurately and honestly. He should have known to indicate on the affidavits that he had a disqualifying offense in the absence of the affidavits stating whether the offenses were misdemeanors or felonies.
After Mr. Wilson began working in Florida with CCA, he was also required to undergo a state and federal fingerprint check. The fingerprint checks revealed the simple battery on
his stepson and also revealed a 1995 arrest for a misdemeanor simple battery in the State of Georgia, which was nolle prossed.
By letter dated February 22, 1999, Mr. Wilson was notified by the Screening Unit’s supervisor of his potential disqualification from employment based upon the two arrests revealed by the fingerprint checks. The letter included identifying information regarding the arrests. The Screening Unit's supervisor requested that Mr. Wilson submit certified copies of arrest reports, court dispositions, and other court documents regarding the two arrests. Mr. Wilson complied and subsequently submitted the requested information.
The Department reviewed the information. The Department determined that Mr. Wilson was ineligible for continued employment in a position of special trust based upon the May 1, 1996, misdemeanor simple battery against his stepson.
By letter dated April 29, 1999, the Screening Unit’s supervisor notified Mr. Wilson that he was ineligible and that he could request an exemption from disqualification. CCA was also notified simultaneously of Mr. Wilson’s ineligibility and was instructed to immediately remove him from direct contact with juveniles. CCA removed Mr. Wilson from direct contact with juveniles.
Mr. Wilson requested an informal exemption hearing, which was held on June 8, 1999. The hearing was conducted by a
committee of two individuals, who only had the authority to make a recommendation to the Inspector General who had final
decision-making authority. In a report dated June 16, 1999, the committee recommended that, although Mr. Wilson had rehabilitated himself, his exemption be denied based upon his falsification of the two notarized affidavits. 1/ The committee’s recommendation, along with the entire background screening file, was forwarded to the Department’s Inspector General.
After reviewing the recommendation and the file, the Inspector General denied Mr. Wilson’s request for exemption. The Inspector General denied the exemption on three grounds. First, Mr. Wilson’s falsification of the two notarized affidavits was proof of Mr. Wilson’s lack of good moral
character and of rehabilitation. Second, an insufficient amount of time had elapsed since Mr. Wilson’s commission of simple battery on his stepson, a minor, to establish good moral character and rehabilitation. Third, Mr. Wilson failed to show that he had successfully completed his probationary period regarding his conviction of simple battery on his stepson.
By letter dated June 22, 1999, the Inspector General notified Mr. Wilson that his request for exemption was denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
Section 39.001, Florida Statutes, provides in pertinent part:
The Department of Juvenile Justice . .
. may contract with . . . public and private agencies, and private individuals and corporations in carrying out the purposes of, and the responsibilities established in, this chapter.
When the Department of Juvenile Justice
. . . contracts with a provider for any program for children, all personnel, including owners, operators, employees, and volunteers, in the facility must be of good moral character. A volunteer who assists on an intermittent basis for less than 40 hours per month need not be screened if the volunteer is under direct and constant supervision by persons who meet the screening requirements.
The Department of Juvenile Justice . .
. shall require employment screening pursuant to chapter 435, using the level 2 standards set forth in that chapter for personnel in programs for children or youth.
The Department of Juvenile Justice
. . . may grant exemptions from disqualification from working with children as provided in s. 435.07.
Mr. Wilson is an employee of a provider, CCA, for the Department and is employed in a position of trust or responsibility. He is, therefore, statutorily required to be of
good moral character. The Department is charged with performing a level 2 standards check, provided in Chapter 435, Florida Statutes, on Mr. Wilson; however, the Department is also given the authority to grant Mr. Wilson an exemption from disqualification from working with children at the facility operated by the provider.
Section 435.04, Florida Statutes, provides in pertinent part:
All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:
* * *
(h) Section 784.03, relating to battery, if the victim of the offense was a minor.
Mr. Wilson is employed in a position of trust or responsibility. He committed an offense, battery on a minor, that the Department is statutorily required to make sure that he has not committed. However, the Department may grant an exemption.
Section 435.06, Florida Statutes, provides in pertinent part:
(2) The employer must either terminate the employment of any of is personnel found to be in noncompliance with the minimum standards of good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.
Section 435.07, Florida Statutes, provides in pertinent part:
Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.
(1) The appropriate licensing agency may grant to any employee otherwise qualified from employment an exemption from disqualification for:
* * *
(b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;
* * *
(3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. . . .
Subsection 39.001(2), Florida Statutes, requires Mr. Wilson, as an employee of CCA, to be of good moral character. Subsection 435.06(2), Florida Statutes, addresses minimum standards for good moral character and the affected employee being granted an exemption from disqualification.
Subsections 435.07(1) and (3), Florida Statutes, address the affected employee demonstrating by clear and convincing evidence that he/she should not be disqualified from employment and the employee having the burden of demonstrating his/her rehabilitation in order to receive an exemption from disqualification.
Mr. Wilson has demonstrated that he has been rehabilitated regarding the misdemeanor offense. The record is devoid of any further incidents involving Mr. Wilson against his
stepson, and their relationship has greatly improved. Moreover, Mr. Wilson has been working directly with juveniles with his current employer (CCA) prior to and since being transferred by his employer to Florida in July 1997, and no incidents have been recorded involving Mr. Wilson against the juveniles. The Department argues, in addition to the failure of Mr. Wilson to present clear and convincing evidence of his rehabilitation, that he has not taken any classes in "anger management control" and, therefore, Mr. Wilson is at risk of losing his temper and injuring one of the juveniles. The undersigned is also concerned with the absence of Mr. Wilson taking such classes; however, this concern does not rise to the level as to forbid him from being employed in a position working directly with juveniles. Mr. Wilson can immediately take classes on "anger management control."
The Department further argues that Mr. Wilson’s actions as to the affidavits should also be considered in determining whether he possesses good moral character; and that, because Mr. Wilson was not truthful on his affidavits, he has failed to demonstrate that he possesses good moral character. The undersigned is persuaded by the Department’s argument.
Moral character has been defined as "not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules
of right conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence." Zemour, Inc. v. Florida Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977).
"What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same available." White v. Beary, 237 So. 2d 263, 266 (Fla. 1st DCA 1970). A lack of good moral character has been determined to include "acts and conduct which would cause a reasonable man to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar
Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978).
"In the context of professional and occupational licensing, the question of what constitutes good moral character has been held to be ordinarily a question of fact for the trier of fact." Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So. 2d 187, 188 (Fla. 3d DCA 1991).
Mr. Wilson failed to demonstrate that he possesses good moral character through his conduct by not indicating on the affidavits that he had a disqualifying offense. The role played by his employer is to be considered; however, his
employer’s role fails to excuse Mr. Wilson’s responsibility to truthfully and honestly complete the affidavits.
RECOMMENDED that the Department of Juvenile Justice enter a final order denying James Wilson an exemption from disqualification of employment to work in a position of special trust or responsibility with it.
DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2000.
1/ Mr. Wilson complained at hearing that the notice he received for the informal hearing before the committee did not refer to the affidavits, however, the committee’s inquiry included the affidavits. It appears that the notice followed the statutory provision in Subsection 435.07, Florida Statutes, dealing with rehabilitation. Perhaps, if the language of the statute also specifically included "good moral character" and not only
rehabilitation, the affected employee, as well as the Department, would be on notice as to what needed to be addressed at the committee level.
Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General’s Office 2737 Centerview Drive
William G. "Bill" Bankhead, Secretary Department of Juvenile Justice
Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
